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Criticism of capital punishment is mounting. States are executing fewer death row inmates. Two new Republican appointees have joined the Supreme Court. But other justices are palpably uncomfortable with the death penalty. The year was 1972. It was the year when the Court suddenly declared the death penalty unconstitutional in Furman v. Georgia � a “constitutional earthquake,” one commentator said at the time. Today, in the wake of a batch of conflicting Supreme Court decisions on the death penalty this past term, abolitionists are beginning to draw parallels with that period more than a third of a century ago, when the Court’s long-standing support for capital punishment dissolved, at least for a while. (The Court allowed states to resume executions in Gregg v. Georgia in 1976.) “The Court is increasingly concerned about error in capital cases � error that raises fundamental concerns about reliability,” says Bryan Stevenson, executive director of the Equal Justice Initiative, who has been representing Alabama death row inmates on appeal for nearly 20 years. “The doubts and criticisms are beginning to echo the concerns of Furman.” The parallel with 1972 may reflect a good dose of wishful thinking; some of the decisions of this past term supported states seeking to limit inmate appeals, and executions have certainly gone forward. In Furman, five justices viewed capital punishment as unconstitutional, creating a slim but bankable majority. On the current Court, by contrast, the number of justices expressing serious doubts may have maxed out at four � especially since Samuel Alito Jr. replaced Sandra Day O’Connor in January. In several votes on capital cases, says Kent Scheidegger of the Criminal Justice Legal Foundation, “Alito seems to be less inclined than O’Connor to fine-tune state procedures.” Scheidegger, a capital punishment supporter, adds that he is “not concerned” by the qualms of a minority of justices. But this term those four justices � John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer � made it clear that their concerns, especially about the possible execution of the innocent, are deepening. Their mood guarantees turmoil ahead on the issue, with Justice Anthony Kennedy in his characteristic role as swing vote. On June 26 the four joined in a strongly worded dissent in Kansas v. Marsh, expressing moral disapproval of a state law that imposes a death sentence even when mitigating and aggravating circumstances are equal. Such a scheme does not reserve the death penalty for the “worst of the worst,” Souter wrote in the dissent, which quoted Furman. Beyond that, he said the Kansas law does not take into account the “new body of fact” � namely, the increase in the number of exonerations of death row inmates. “In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure,” Souter wrote. Veteran Supreme Court advocate Donald Verrilli of Jenner & Block says “that level of disquiet is very significant. It’s as close as they have come to saying the whole enterprise is too fraught with the risk of error.” The dissent in Marsh puts those four justices “very close to where Justice Blackmun left off,” adds Virginia Sloan, president of the Constitution Project, which has launched a bipartisan initiative seeking ways to fix the death penalty system. In his last year on the Court the late Justice Harry Blackmun, who had dissented in Furman, ended his support for capital punishment. “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed,” Blackmun wrote in Callins v. Collins in 1994. Washington and Lee University School of Law professor David Bruck, a longtime advocate in death row appeals, says: “There seem to be four justices who have really had it with the death penalty experiment. But that’s not to say that if they had a fifth vote, they would necessarily abolish it altogether.” A degree of innocence The new mood of high court doubt about the death penalty has been fueled by years of revelations about death row inmates being freed based on DNA and other evidence, says Barry Scheck, a co-founder of the Innocence Project and a former president of the National Association of Criminal Defense Lawyers. “That is what is rocking the foundation of the system.” As evidence, Scheck points to several decisions this term � not dissents � in which the Court lent support to exoneration efforts. In House v. Bell, the Court said that, based on strong DNA evidence, defendant Paul House should be allowed to proceed with a federal habeas appeal even though his claim was procedurally defaulted. In Holmes v. South Carolina, Alito’s maiden opinion, the Court struck down an evidence rule that barred introduction of proof of third-party guilt. And yet, reflecting the Court’s mixed feelings about the death penalty, Scheck saw firsthand that these seemingly helpful decisions are not going to bring a swift end to executions. Scheck invoked both Holmes and House in an eleventh-hour appeal on behalf of Tennessee inmate Sedley Alley on June 27. Alley claimed new evidence, including DNA, would prove his innocence in a case of rape and murder in 1985. But the Court denied Alley’s petition, and early on the morning of June 28 he was executed. “I thought it was a clear case for them to take,” says Scheck. “It was the bitterest disappointment I can remember.” Alley’s fate is a reminder that the Court is still far from turning away from the death penalty. This term the Court also decided Oregon v. Guzek, upholding a state rule that limits the ability of a defendant to offer innocence evidence at sentencing. In Brown v. Sanders, the Court upheld a death sentence even though two of the sentencing factors weighed by the jury were declared invalid. And then there was the majority opinion in Kansas v. Marsh, which gave states leeway in how aggravating and mitigating circumstances are weighed. Justice Antonin Scalia chimed in with a concurrence dismissing Souter’s concerns about executing the innocent. “It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad,” Scalia wrote. “For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.” He proceeded with an uncharacteristic outside-the-record attack on the innocence movement. “The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt,” Scalia wrote. “In identifying exonerees, the dissent is willing to accept anybody’s say-so. It engages in no critical review, but merely parrots articles or reports that support its attack on the American criminal justice system.” Fuel for injections At a practical level, the death penalty decision that may halt the most executions � at least temporarily � is Hill v. McDonough, issued June 12, which said that challenges to the constitutionality of the lethal injection method can proceed as civil rights claims under 42 USC 1983. On July 5 the Court rejected an Arkansas request to dissolve a stay of execution for Don Davis. Awaiting execution, Davis had challenged the state’s lethal injections in light of the Hill case. Davis never made the trip to the execution chamber. Similar challenges have halted executions in Missouri and California. These delays may be short-lived, as states are devising new chemical formulas and procedures to make this form of execution less painful. Under the prevailing three-drug sequence now in use in executions, critics say that while a paralyzing drug may make death seem painless, it may in fact be excruciating. But Jenner & Block’s Verrilli, one of the lawyers for Florida inmate Clarence Hill, says the decision was one more sign of the unease justices � including swing vote Kennedy, who wrote the Hill decision � have with the death penalty. At oral argument, when there was banter about old age as an alternative method of execution, Kennedy sternly cut off the discussion: “This is a death case. It was not that amusing.” Says Verrilli: “The enormous moral gravity of the death penalty, and the risk of error, are really weighing on him.” Stevenson believes that over time, similar concerns will weigh on Alito and Chief Justice John Roberts Jr., as well. Neither has had much exposure to death penalty cases. Fewer than 20 executions have taken place in Alito’s 3rd Circuit in the past 30 years. Roberts handled none on the D.C. Circuit, though as a private attorney he helped represent a Florida death row inmate pro bono. Their support for capital punishment could soften as late-night appeals come into the high court week after week, Stevenson predicts. “It’s not until you are on the Supreme Court for several years that you get a feeling for how problematic and vexing the death penalty is. After a while you get exhausted and say, �We should be doing better.’ “ Tony Mauro can be contacted at [email protected]

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